In the wake of last Friday’s “Trifecta” (my words) when the D.C. Circuit remanded three criminal appeals, another divergent panel vacated a district court that had denied a motion to suppress physical evidence and a statement gained as a result of a warrantless seizure.

In United States v. Castle a divided Circuit panel overturned the district court, finding the police officers’ street apprehension of Harold Castle to have been unreasonable and built on the officers’ flimsy inferences and the Trial Judge’s “generalized findings regarding ‘the neighborhood.’” (Slip Op. at 3). Speaking for the majority, Senior Circuit Judge Edwards found that the officers had no reasonable basis to detain appellant and question Castle, and suppressed the evidence therefrom. The officers claimed that Castle was acting furtively and they intuited that he must have known of their presence in an unmarked vehicle, because he lived in an area with a high incidence of drug trafficking. However, Circuit Judge Edwards demolished those claims, one-by-one, liberally sprinkling his opinion with citations to a number of key precedents worthy of defense counsel’s reading and study.

First, Judge Edwards addressed the governing legal framework. He observed that “‘[u]nder the Fourth Amendment our society does not allow police officers to “round up the usual suspects.”’” (Slip Op. at 3) (quoting United States v. Laughrin, 438 F.3d 1245, 1247 (10th Cir. 2006)). “‘An officer relying on his or her ‘knowledge of [an individual’s] criminal record’ is ‘required to pair’ that knowledge with ‘”concrete factors” to demonstrate that there [is] a reasonable suspicion of current criminal activity.’” (Slip Op. at 3) (quoting United States v. Foster, 634 F.3d 243, 247 (4th Cir. 2011) (emphasis added)). Not only must there be “’‘objective indications of ongoing criminality,’” (Slip Op. at 4) (quoting United States v. Monteiro, 447 F.3d 39, 47 (1st Cir. 2006)), “[t]he law also makes clear what is eminently logical. In order to find that a person is evading the police, there must be evidence that the person has knowledge of a police presence.” (Slip Op. at 4) (citing Illinois v. Wardlow, 528 U.S. 119, 124 (2000)). “Similarly, in the context of a reasonable, articulable suspicion analysis, ‘furtive gestures “are significant only if they were undertaken in response to police presence.’”” (Slip Op. at 4) (quoting United States v. Brown, 33 F.3d 1161, 1168 (D.C. Cir. 2003)) (internal quotations omitted)). “In both instances,” the Court found, “the putatively evasive or furtive conduct cannot provide the necessary evidence of knowledge of a police presence. There must be independent evidence from which that knowledge can be inferred.” (Slip Op. at 4) (Citing, inter alia, Wardlow, 528 U.S.at 124; Brown, 334 F.3d at 1168).

Next, Judge Edwards turned to the facts. He stated that the officers’ assumption that Appellant knew of the presence of their unmarked truck on the evening in question did not follow from general knowledge in the neighborhood that the truck was a police vehicle. (Slip Op. at 4. Indeed, “the record is entirely devoid of any evidence from which a reasonable officer could infer that Appellant knew of the truck’s (and therefore the officers’) presence before he was stopped.” (Id.). For all intents and purposes, majority stated, “the officers’ critical assumption of knowledge was based on nothing.” (Id, at 4-5) (emphasis original).

Not only that, said the court, “[w]alking quickly on a very cold evening is commonplace, not suspicious, activity. So, too, is walking into an alleyway, leaning over, and walking out. These actions are entirely mundane. The fact that they took place in a residential neighborhood plagued by drug use did not allow the police officers to ignore the dictates of the Fourth Amendment. (Slip Op. at 5) (citing United States v. Sprinkle, 106 F.3d 613, 618 (4th Cir. 1997) (prior conviction “for a narcotics offense” and presence “in a neighborhood with a high incidence of drug traffic,” without “(other) particularized evidence that indicates criminal activity is afoot,” is insufficient to demonstrate reasonable, articulable suspicion)).

Even giving the Trial Judge’s findings all deference required under Ornelas v. United States, 517 U.S. 690 (1996), the majority concluded that “District Court’s determination that the officers’ inference that Appellant was aware of their presence had no basis in the factual record, it is entitled to no weight.” Because the officers had the officers had no “reasonable, articulable suspicion to stop Appellant,” the Trial Judge’s decision upholding the warrantless seizure was reversed, for the facts found and resulting conclusions of law were clearly erroneous. (Slip Op. at 5-6, 9-10). Key to the Court of Appeals decision were the following:

Castle had been seized and restrained, for the police behavior amounted to “a show of authority” when the officers accosted him and instructed him to “hold on.” (Slip Op. at 11-13) (citing, inter alia California v. Hodari D., 499 U.S. 621, 628-29 (1991); United States v. Wood, 981 F.2d 536, 538-39 (D.C. Cir. 1992)). In this respect, the court found “disingenuous” the Government’s claim to the contrary, given the officers’ testimony. (Slip Op. at 14).

“It is the Government’s burden to provide evidence sufficient to support reasonable suspicion justifying any such stop,” under Brown v. Texas, 460 U.S. at 500, 443 U.S. 47, 51-52 (1979), and this one didn’t come close, the majority concluded. In particular, Judge Edwards explained, one examines all the surrounding circumstances. “In considering the totality of the circumstances, it is ‘imperative’ that we look only to “the facts available to the officer at the moment of the seizure.’”(Slip Op. at 15) (citing, inter alia, Ornelas, 517 U.S. at 696; Sibron v. New York, 392 U.S. 40, 64 (1968)). Those facts were to be assessed in an “objective framework: “‘[T]he issue is whether a reasonably prudent man in the circumstances would be warranted in his belief’ that the suspect is breaking, or is about to break, the law.’” (Slip Op. at 15) (quoting United States v. Edmonds, 240 F.3d 55, 59 (D.C. Cir. 2001)).

Applying a de novo standard of review, the majority commented, “in assessing a trial court’s reasonableness determination, it is critical that we also keep in mind the Supreme Court’s admonition that ‘due weight must be given, not to [an officer’s] inchoate and unparticularized suspicion or ‘hunch,’ but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.” (Slip Op. at 16) (quoting Terry v. Ohio, 392 U.S 1, 27 (1968) and citing, inter alia,United States v. Sokolow, 490 U.S. 1, 7 (1989)). Because “the Fourth Amendment ‘does not allow police officers to “round up the usual suspects,”’” the majority stated “an officer relying on his or her ‘prior knowledge of [an individual’s] criminal record’ is ‘required to pair’ that knowledge ‘with some more “concrete factors” to demonstrate that there [is] a reasonable suspicion of current criminal activity.’” (Slip Op. at 16-17) (quoting Laughrin, 438 F.3d at 1247 and United States v. Foster, 634 F.3d 243, 247 (4th Cir. 2011) (emphasis added by court)).

Nothing stated here by the officers fit the bill – not the high crime rate in the neighborhood, Appellant’s walking away quickly as the unmarked car approached; Appellant’s ostensibly “furtive movements” or the officers’ prior experience arresting Appellant. (Slip Op. at 17). The neighborhood’s crime rate was a “’contextual consideration[]’ and, as such, cannot provide the kind of information particular to Appellant that is necessary to demonstrate reasonable suspicion.” (Slip Op. at 18) (quoting Illinois v. Wardlow, 528 U.S. 119, 124 (2000)).and the officers’ prior experience with Castle could “only corroborate, not provide, the necessary, concrete indicia that Appellant was involved in criminal behavior when he was stopped.” (Slip Op. at 18) (emphasis original).

Focusing next on the District Court’s conclusion that “it was not unreasonable for the officers to believe Defendant knew or suspected their [unmarked Dodge Ram] was a police vehicle,” the majority disagreed. Specifically, Judge Edwards found that there was no evidence for that inference in the record and therefore the Government’s submission “necessarily collapses.” (Slip Op. at 18-19). Looking to the Supreme Court’s Wardlow decision and Circuit precedent such as Edmonds, the majority observed that “‘furtive gestures are significant’ in a reasonable, articulable suspicion analysis ‘only if they were undertaken in response to police presence, [a]nd a suspect can respond to the presence of a police officer only if he has recognized him as an officer.’” (Slip Op. at 19) (citing Wardlow, 528 U.S. at 123-24; United States v. Brown, 334 F.3d 1161, 1168 (D.C. Cir. 2003), and Edmonds, 240 F.3d at 61) (emphasis by court). But here there were “multiple problems” with the Trial Judge’s findings, for nothing indicated Castle knew of the police presence before he was accosted and seized. Thus “[t]he failure of the Government to provide any evidence supporting the officers’ inferences that Appellant knew of their presence and was acting in response to it” rendered the lower court’s upholding the seizure as reasonable a “classic non sequitur.” (Slip Op. at 19-21).

Finally, after distinguishing the case at hand from decisions such as Edmond, where there was clear evidence that the suspect knew well that the police had observed him and reacted with obvious evidence of complicity, the Court of Appeals discussed the Government’s responses to questions posed during oral argument and either found them unsupported or contradicted by the record. (Slip Op. at 22-28).

Dissenting, Senior Circuit Judge Silberman agreed that while “each individual factor may be ‘susceptible of innocent explanation, and some factors are more probative than others[, t]aken together,’” nonetheless “they can suffice to form the particularized and objective basis required by Terry. (Slip Op. at 4) (Silberman, J., dissenting).

They should be flying the Jolly Roger from the mast over at the Federal Defender’s office this week, after last week’s victory recognizing the battered woman syndrome defense in Nwoye, and one just two weeks ago in Kpodi, interdicting the improper use of Rule 404(b) “other crimes” evidence. Assistant Federal Public Defender Tony Axam, Jr., joined on the briefs by A. J. Kramer, Chief Federal Defender, gets a well-deserved round of applause for a constitutional victory upholding Fourth Amendment principles.

–Steve Leckar, of counsel to Kalbian Hagerty LLP, enjoys following and occasionally arguing in the D.C. Circuit.